A New Tunisian Law Tackles Violence Against Women

September 12, 2017

Sahar Khamis

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Tunisia, the cradle of the Arab Spring and the only country which seems to have survived its uncertainties, has been a pioneer in women’s rights since its birth as a modern state in 1956. The Code of Personal Status, introduced that year, was considered the most revolutionary law in the Arab world at the time. Tunisia is now breaking new ground in the area of gender equality. By issuing a new law, which deepens and broadens the definition of violence and its domains, manifestations, and legal consequences, Tunisia sets a new model for its Arab neighbors to emulate and raises the bar in the struggle for women’s rights and gender equality within the Middle East and North Africa region.

A Long Struggle Against Violence

The struggle to fight violence against women is not new to Tunisian society. Feminist organizations in Tunisia started raising the issue of violence against women since the early 1990s, and early on, the Tunisian Association of Democratic Women opened its first hotline center to receive complaints from women who were victims of violence, be it domestic or otherwise. It took more than 20 years of continuous activism by Tunisian feminist organizations and supportive civil society actors, however, before violence against women was even recognized as a legal violation.

Beside strong advocacy by civil society actors and the support of many domestic and international organizations, there were also ongoing efforts by the Tunisian government to eliminate violence against women in the country. Examples include the adoption of the National Action Plan for the Elimination of Violence against Women in 2013 and the withdrawal of reservations to the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women.

Domestic violence, in particular, was often ignored, as it was relegated to the “private” realm of family affairs; it was, in many cases, accepted or legitimized within the context of cultural norms and traditional practices, especially in rural areas. Human Rights Watch explains that “women face high rates of domestic violence in Tunisia, with at least 47 percent of women experiencing domestic violence in their lives, according to a 2010 survey from the National Family Office.” In addition, Tunisian rights groups note that women are still subject to discrimination, and about half of the women in Tunisia say they have experienced at least one form of violence in their lifetime.

A Pioneering Law (Re)Defines and Fights Violence

The new law number 581 was passed on July 26, 2017 with consensual approval from Tunisia’s parliament. It was hailed as a landmark step to shield women from violence. The purpose of this groundbreaking new law is to “define measures required to eliminate all forms of violence based on gender and to ensure equality and respect for human dignity, by adopting a comprehensive approach based on the fight against the different forms of violence, the prosecution and sanctioning of perpetrators and the protection and support of victims.”

The most significant contribution of this new law is widening and deepening the definition of violence to include sexual, physical, psychological, economic, and other forms of gender-based violence. This constitutes an unprecedented and comprehensive level of acknowledgement of violence and all its different forms, which, subsequently, provides an unprecedented and comprehensive level of protection against these multiple forms of violence. It also criminalizes discrimination based on gender in all spheres.

By doing so, this law moved the notion of violence out of the private and into the public sphere by showing that violence against women is a phenomenon that concerns all of society, including the workplace and political participation. This increases the acknowledgement, recognition, and visibility of these multiple forms of violence and compels society to take them more seriously.

This broad definition of violence, however, could be seen as a double-edged sword. On the one hand, it attracted praise for the new law for its perceived inclusiveness and comprehensiveness. On the other hand, earlier drafts of this law received some criticism for being overly broad, to the extent of vagueness and ambiguity. This could lead to the criminalization of certain actions and forms of speech, thus causing undesired infringements on basic human rights such as freedom of speech and information, the right to privacy, protection of sources, and professional confidentiality.

The pioneering law, which is in full compliance with the 2014 constitution, whose Article 46 says that “the State must take all necessary measures to eradicate violence against women,” is based on international principles. In addition to educating society about gendered violence and gender equality, it “draws on four pillars: prevention, protection of victims, providing care and punishing perpetrators.”

However, there are some concerns that this new law does not clearly stipulate how the state will fund these ambitious policies, and that it does not provide clear directives for their application and enforcement within a strict timeframe.

Excellent Wording, Perfect Timing: Recipe for Consensus

The fact that this law was unanimously approved by all members of the Tunisian parliament attending the session should not obfuscate the fact that there was actually strong resistance to it among some of the MPs until the very last minute. One of the issues that provoked heated debate in parliament was the phrase “violence based on gender”; indeed, some Members of Parliament from Ennahda, the Islamist party, initially argued that it could threaten “family unity” and “legitimize homosexual marriage.” In addition, it was not easy to get the age of “informed sexual consent” raised from 13 to 16 years, as indicated in this new law. However, thanks to lobbying efforts from feminists and human rights organizations, including putting in place a comprehensive strategy targeting the media, political parties, and opinion leaders in Tunisian society, and forming a civil coalition against violence toward women, parliamentarians across the board were finally convinced of the need to adopt this new law.

One of the factors that facilitated the ultimate consensual approval of this new law was the excellent phrasing of its articles. For example, the law defined sexual violence as any non-consensual sexual act “regardless of the perpetrator’s relationship with the victim.” This is of special importance, since it encapsulates the act of non-consensual marital sex, without bluntly stating the controversial term “marital rape”—which was one of the problematic, sensitive issues that stirred objection to adopting this law in the past, especially from the religiously conservative camp. Previously, women who raised this sensitive and controversial issue were denied a hearing in court, on the basis that this is their marital obligation and their husbands’ marital right. Based on a strict interpretation of Shariah law, judges were able to say that marital rape was not actually rape and, therefore, not a crime. Thanks to this new law, marital rape will always be criminalized and unambiguously treated as rape, but also with no direct clash with the religiously conservative camp which believes that a man’s sexual acts inside marriage are a right not to be impeded.

Recent events have also widened the definition of who could be considered a “victim” to include not just women, but also children and those who are considered fragile, in general, such as the elderly and the disabled. In addition, the public hearings of the national Truth and Dignity Commission in 2017 acknowledged openly, for the first time, that men and boys could also be victims of rape and sexual violence. This may have resulted in stronger support for the new law about violence against women and facilitated its approval and consensual adoption, as it was perceived to be situated within a “human rights” context.

The approval of this law could also be credited to its perfect timing, not just its excellent wording. The fact that this new law was released just a few months before the upcoming elections in Tunisia is significant for two main reasons.

First, the 90-year-old outgoing president of Tunisia, Beji Caid Essebsi, wants to leave behind a legacy like that of the founder of modern Tunisia, Habib Bourguiba, who introduced the revolutionary Code of Personal Status. Essebsi’s wish to be remembered as a champion of women’s rights and as a driving force behind Tunisia’s modernization on several social fronts, including gender equality, explains why he is pushing a progressive social agenda that goes beyond this groundbreaking, and largely supported, law. He also supports more controversial, and potentially divisive, laws such as an equal inheritance law for both men and women, as well as a law allowing Muslim women to marry non-Muslim men.

Second, the moderate Islamist party Ennahda, which won the elections in 2011 after the ousting of Tunisia’s dictator Ben Ali, came in second in the 2014 elections and is now a partner in Youssef Chahed’s coalition government, was in agreement on the law. The party would like to build a better image for itself in the minds of the Tunisian public and to gain more approval from potential voters, in preparation for the upcoming elections. This is especially important for them after some of their prior attempts to push forward a more religiously conservative agenda, including reinstating polygamy, legalizing female circumcision, and modifying the constitution to call for “complementarity, rather than equality” between men and women—which proved to be unsuccessful mainly due to a strong reaction from civil society actors and organizations, especially feminist activists and their associations. By supporting such a law, which could be considered religiously benign because it does not directly or overtly clash with Islamic texts, and which is legitimized within a human rights context, the party hopes to widen its popular base of support among civil society actors, especially feminist activists, and, therefore, to enhance its chances of winning the upcoming elections.

This explains why, ironically enough, one of this party’s MPs, who worked for six months to get the new law against violence approved, expressed support and enthusiasm for it, describing the law “as revolutionary, if not more, than the 1956 Code of Personal Status,” a law which the Ennahda party itself had opposed and criticized for many years for including articles that were perceived to clash with Shariah law, such as the prohibition of polygamy. Therefore, it could be said that all the principal actors in Tunisia had their own pragmatic agendas and political tactics, which were well-served by supporting this new law at this particular moment in time. However, the party that was truly best-served in this case was the Tunisian women.

What’s Next for Tunisia?

Just like this new law is not the first in Tunisia’s history, in light of its progressive agenda on gender issues, it is not expected to be the last. Despite this groundbreaking legislation against gendered violence, which Tunisia was the first country in the Arab world to adopt, and the 19th country worldwide, it could be argued that further steps are still needed to achieve full gender equality in Tunisia.

According to Human Rights Watch (HRW), “the code still designates the man as the head of the household and denies Tunisian daughters an equal share of an inheritance with their brothers, and in some cases with other male family members.” Further, HRW notes that “while Tunisia’s Personal Status Code sets equal marriage conditions for both men and women, a 1973 administrative directive forbids the registration of a marriage of a Muslim woman to a non-Muslim man. It includes no such restriction on Muslim men.”

In August, President Essebsi launched a commission to put individual liberties laws into practice for women. Despite these push-and-pull mechanisms among different parties, one of the lessons learned from the success story of passing the new law against violence is that Tunisia’s strength lies in its active civil society, its vibrant feminist movement, as well as the shrewd pragmatism of its politicians, whether those in the government or the opposition, or those leaning toward the secular-liberal end of the spectrum or the religious-conservative end. In addition, the fact that these new amendments are all fully supported, and even proposed, by the president of the republic himself gives added weight and increases the chances of their adoption and implementation.

What’s Next for the Arab Region?

Tunisia is not the only Arab country moving forward on the path toward legal reform to benefit women, although it is certainly moving faster and leading others on this path.

According to an August 2017 article in The New York Times, “Over the past three months, significant legal reforms on women’s rights have advanced in a handful of countries in the Middle East and North Africa. In mid-August Lebanon’s Parliament finally repealed its rape law, which allowed assailants to escape punishment if they wed their victims. Two weeks earlier, Jordan, too, closed its ‘marry your rapist’ loophole, and amended an article in its penal code that granted lesser penalties for…honor killings…” Similarly, Tunisia eradicated the controversial “Article of Shame,” which provided rapists with a legal loophole to escape punishment: to marry their victims. This infamous article allowed the rapist to avoid legal consequences, if the victim was a minor, under 15 years of age, by claiming that it was a consensual act. The new law raised the age of consensual sex to 16 years, and it criminalized any non-consensual sexual relationship with a minor, under 18 years of age.

Repealing this law has been described as a “historic step” in both Jordan and Lebanon. Although these two countries have their differences when it comes to the degree of social openness, the composition of their societal fabric, and the history of women’s rights, they—with Tunisia—shared a common experience in terms of the route they took to reach this important step. It was a result of the long-term, combined efforts of both national and international organizations working in the area of women’s rights and gender equality, with the aim of changing not just the laws, but, most importantly, the underlying culture and mindset regarding gender issues in their respective societies, which is seen as the true uphill battle that still needs to be won.

It is safe to predict that this new tide of legal reform aiming to uphold women’s rights could very well seep into other Arab countries in the near future. One good candidate for adopting tougher laws against sexual violence soon would be Morocco, after the shocking gang-rape of a mentally ill young woman on a public bus in Casablanca went viral on social media, causing wide resentment outside Morocco and sending shockwaves and triggering protests inside the North African country, which has been witnessing a surge in sexual crimes lately. Additionally, Moroccan and Tunisian societies share the same conditions of a strong civil society, an educated population exposed to western influences, and a liberalized secular elite trying to balance traditionalism with modernity in what impacts women’s rights.

It is also safe to predict that this new wave of gender-related legal reform will most likely sweep through the countries that did not suffer from turbulent conditions in the aftermath of the Arab Spring movements, whose pressing challenges relegate gender-related reform to a lower level of priority—at least for the time being.

Although the pace and degree to which this new wave of gender-related legal reform could be adopted in the Arab region may be uncertain, one fact remains certain: Arab women’s activism will continue in the political, social, and legal spheres simultaneously to secure more gains and to overcome unjust laws and cultural practices.

Sahar Khamis is a member of the Academic Advisory Board of Arab Center Washington DC. To learn more about Dr. Khamis click here